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procrastinator124

K-1 Spouse and FBAR Compliance

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I have been a silent observer on VJ so far but felt that I should share my research in FBAR filing requirements.

What is FBAR: A United States person that has a financial interest in or signature authority over foreign financial accounts must file an FBAR if the aggregate value of the foreign financial accounts exceeds $10,000 at any time during the calendar year.

Background: I was debating whether my wife, a K-1 entrant, is required to file FBAR for 2016. In researching the issue, the requirement to file boils down to whether she is considered a United States person for 2016. This analysis is only applicable if you are a K-1 entrant who has not yet converted to a green card. If you are a green card holder, you are required to file FBAR.

Applicable Regulations: Because I know we all love form filling/instruction cross-checking with the K-1 and AOS process, lets get into the nitty-gritty.

Disclaimer: I only included snippets I believe are relevant. I am neither a tax or legal professional.

FBAR filing instructions for FinCEN Form 114

United States person means United States citizens (including minor children); United States residents; entities, including but not limited to, corporations, partnerships, or limited liability. A United States resident is an alien residing in the United States. To determine if the filer is a resident of the United States apply the residency tests in 26 U.S.C. section 7701(b).

26 U.S.C. section 7701(b)

An alien individual shall be treated as a resident of the United States with respect to any calendar year if (and only if) such individual meets the requirements of clause (i), (ii), or (iii):

(i) Lawfully admitted for permanent residence

Such individual is a lawful permanent resident of the United States at any time during such calendar year.

(ii) Substantial presence test

Such individual meets the substantial presence test of paragraph (3).

(iii) First year election

Such individual makes the election provided in paragraph (4).

26 U.S.C. section 7701(b) Substantial Presence Test

Such individual was present in the United States on at least 31 days during the calendar year, and

the sum of the number of days on which such individual was present in the United States during the current year and the 2 preceding calendar years (when multiplied by the applicable multiplier determined under the following table) equals or exceeds 183 days

Current Year………..….1

1st Preceding Year….…1/3

2nd Preceding Year…….1/6

26 U.S.C. section 7701(b) First Year Election

was not a resident of the United States under paragraph with respect to the calendar year immediately preceding the election year

is a resident of the United States under clause (ii) of paragraph (1)(A) with respect to the calendar year immediately following the election year, and

is both (I) present in the United States for a period of at least 31 consecutive days in the election year, and (II) present in the United States during the period beginning with the first day of such 31-day period and ending with the last day of the election year (hereinafter referred to as the “testing period”) for a number of days equal to or exceeding 75 percent of the number of days in the testing period (provided that an individual shall be treated for purposes of this subclause as present in the United States for a number of days during the testing period not exceeding 5 days in the aggregate, notwithstanding his absence from the United States on such days). An alien individual who meets the requirements of subparagraph shall, if he so elects, be treated as a resident of the United States with respect to the election year.

Analysis:

My K-1 spouse is not considered a United States person for the purposes of filing FBAR because she does not meet any of the requirements.

Lawfully admitted for permanent residence

She is currently in the AOS process and has not been admitted yet for permanent residence.

Substantial presence test

2016- 60 Days x 1 = 60 Days

2015- 9 Days x 1/3 = 3 Days

2014- 135 Days x 1/6 = 22.5 Days

Total Days = 85.5 Days (failed test)

First Year Election

She will qualify, however, she will not be electing to be treated as a resident under this section.

Conclusion:

Having failed the 3 tests, I believe she not considered a United States person for the purposes of filing FBAR.

I will still be filing a joint tax return to take advantage of lower taxes. The IRS allows for this “If, at the end of your tax year, you are married and one spouse is a U.S. citizen or a resident alien and the other spouse is a nonresident alien, you can choose to treat the nonresident spouse as a U.S. resident.” This election is not to be confused with the First Year Election from above. Since this election is not referenced as part of the FBAR definition of resident, I believe there is a loophole here to not file FBAR but still file a joint tax return.

If anyone has opposing arguments, please bring them up!


K-1

04/29/2016: NOA1

07/06/2016: NOA2

08/18/2016: Packet 3 Received

08/31/2016: Packet 4 Received

09/09/2016: Interview (Passed, pending medical/police certificate)

09/27/2016: Visa in Hand

11/06/2016: POE

 

AOS

12/06/2016: I-485, I-765, and I-131 mailed

12/07/2016: Received in Chicago, IL

12/12/2016: Check cashed

12/13/2016: NOA1

12/19/2016: NOA1 Hardcopy Received

01/09/2017: Biometrics Appt

01/05/2017: Biometrics Appt (Walk-In Accepted)

03/09/2017: EAD/AP Approved

03/18/2017: EAD/AP Received

 

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Good research skills! Based on the details you provided, you are correct. The "elections" to be treated as a resident are different between the FBAR and joint tax return filing and are made under different sections of the IRC :thumbs:


Maria ~ U.S. Citizen Petitioner

 

11/28/15: Engaged (L)

K-1 & K-2 Process (Completed in 4 mos. 8 days)

 

1/19/16: I-129F Package recv'd by USCIS via FedEx overnight

1/21/16: NOA1 notice date, routed to CSC (1/28 recv'd hardcopy)

3/18/16: RFE Notification (3/23 recv'd hardcopy)

3/28/16: RFE Response Recv'd notification (3/26 delivered via USPS priority)

4/1/16: NOA2 Approval :dancing: (4/6 recv'd hardcopy)

4/25-4/26/16: NVC received case & assigned no. (5/2 recv'd hardcopy dated 4/29)

4/28/16: Left NVC, "In Transit" to consulate

5/2/16: Consulate Receives via DHL

5/9/16: Fiancée travels to CDJ to clear Case # issue & recv'd hardcopy appt letter

5/13/16: Medical & Biometrics Appt.

5/17/16: Interview Appt. - APPROVED :dance:

5/19/16: CEAC Status changed from "Ready" to "Issued"

5/23/16: Recv'd DHL tracking info via email

5/25/16 @10am: Package ready for pickup at DHL office; @3pm: Fiancée picks up packages - Visas in hand! :thumbs: 

8/5/16: Wedding (L)

AOS/EAD/AP Process, K-1 & K-2 (Completed in 4 mos. 15 days)

 

9/21/16: Package recv'd by USCIS via FedEx overnight [Day 1]

9/29/16: NOA1 notice date, text/email recv'd, routed to NBC, 10/4 case status avail [Day 9]

10/6/16: NOA1 Hardcopies recv'd [Day 16]

10/15/16: Biometrics Notice recv'd, NOA date 10/7, postmark 10/12 [Day 25]

10/19/16: AOS Cases (I-864) RFIE Notification, text recv'd, 10/24 recv'd hardcopy [Day 29]

10/27/16: Biometrics (Scheduled) Appt for AOS/EAD - Success [Day 37]

11/2/16: AOS Cases, RFIE Response Recv'd case status update, 10/28 delivered via FedEx) [Day 43]

12/14/16: EAD Cases, Filed SR w/ Tier 2, approaching regulatory timeframe [Day 85 / 76 w/ 9day RFIE delay]

12/21/16: EAD Cases, Filed 2nd SR w/ Tier 2, 1st SR hadn't even been looked at [Day 92]

12/23/16: AOS Case Status Updates - Interview Scheduled, text recv'd [Day 94] :dancing:

1/5/17: AOS Interview Appt Hardcopies recv'd, notice date 12/21/16 (Based on notice date, I believe 2nd SR prompted action on AOS cases) [Day 107]

1/9/17: EAD Cases Status Updates - New Card in Production, email recv'd [Day 111 / 102 w/ 9day RFIE delay]

1/12/17: EAD Cases Status Updates - Card Was Mailed, no email/txt [Day 114 / 105 w/ 9day RFIE delay]

1/14/17: AP Cases - Approval notice hardcopies recv'd, no email/txt/online update [Day 116 / 107 w/ 9day RFIE delay]

1/17/17: EAD/AP Combo Card recv'd via USPS Priority Mail [Day 119 / 110 w/ 9day RFIE delay]

1/27/17: AOS Interview :star: - APPROVED!! :dance:  [Day 129 / 120 w/ 9day RFIE delay ~ 4 mos.]

1/27/17: AOS Case status update - Approved | 1/31/17: New Card in Production | 2/1/17: Card Was Mailed

2/4/17: Green Cards Arrived :dancing:

ROC Process (Window opens up Oct 2018)

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My husband entered on October 28th and we were married on the 5th of December. His account did not exceed 10,000 USD the entire year. Would we still need to file an FBAR? I already sent in my tax return but can amend it I believe.


04/14/16-Case Received

04/18/16-NOA1

04/21/16-NOA1 Hard Copy

06/30/16-NOA2 (73 days)

07/05/16-NOA2 Hard Copy

07/25/16-NVC Case Number Assigned.

07/26/16-Case was in Transit.

07/28/16-Case is now 'Ready' in Amsterdam

08/03/16-Received packet 3

09/27/16-Interview - APPROVED!!

09/29/16- Visa received.

10/29/16- POE date.

12/03/16-Receiving Social Security Number

12/01/16-Married

 

01/09/17-Filed AP, AOS and EAD

01/22/17-Received NOA1 

02/06/17-Biometrics Appointment Letter Received 

02/10/17- Digital RFIE received 

02/16/17-Biometrics appointment

02/21/17-RFIE Response Sent

02/23/17-RFIE Response received by USCIS

02/24/17-Status was updated on the USCIS website to "Response received" 

03/09/17-Status changed to "Ready to Schedule Interview"

04/14/17-Filed a service request for EAD card

04/19/17- EAD card is being produced

04/25/17-EAD/AP card was sent out.

04/27/17-Received combo card. 

09/25/17-AOS Interview-APPROVED!

09/30/17-Green card in hand! Done for 2 years :D

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5 hours ago, Delirium said:

My husband entered on October 28th and we were married on the 5th of December. His account did not exceed 10,000 USD the entire year. Would we still need to file an FBAR? I already sent in my tax return but can amend it I believe.

If the aggregate value of all foreign financial accounts exceeded $10,000 at any time during the calendar year then you have an FBAR filing requirement. If not, nothing to report :)


Maria ~ U.S. Citizen Petitioner

 

11/28/15: Engaged (L)

K-1 & K-2 Process (Completed in 4 mos. 8 days)

 

1/19/16: I-129F Package recv'd by USCIS via FedEx overnight

1/21/16: NOA1 notice date, routed to CSC (1/28 recv'd hardcopy)

3/18/16: RFE Notification (3/23 recv'd hardcopy)

3/28/16: RFE Response Recv'd notification (3/26 delivered via USPS priority)

4/1/16: NOA2 Approval :dancing: (4/6 recv'd hardcopy)

4/25-4/26/16: NVC received case & assigned no. (5/2 recv'd hardcopy dated 4/29)

4/28/16: Left NVC, "In Transit" to consulate

5/2/16: Consulate Receives via DHL

5/9/16: Fiancée travels to CDJ to clear Case # issue & recv'd hardcopy appt letter

5/13/16: Medical & Biometrics Appt.

5/17/16: Interview Appt. - APPROVED :dance:

5/19/16: CEAC Status changed from "Ready" to "Issued"

5/23/16: Recv'd DHL tracking info via email

5/25/16 @10am: Package ready for pickup at DHL office; @3pm: Fiancée picks up packages - Visas in hand! :thumbs: 

8/5/16: Wedding (L)

AOS/EAD/AP Process, K-1 & K-2 (Completed in 4 mos. 15 days)

 

9/21/16: Package recv'd by USCIS via FedEx overnight [Day 1]

9/29/16: NOA1 notice date, text/email recv'd, routed to NBC, 10/4 case status avail [Day 9]

10/6/16: NOA1 Hardcopies recv'd [Day 16]

10/15/16: Biometrics Notice recv'd, NOA date 10/7, postmark 10/12 [Day 25]

10/19/16: AOS Cases (I-864) RFIE Notification, text recv'd, 10/24 recv'd hardcopy [Day 29]

10/27/16: Biometrics (Scheduled) Appt for AOS/EAD - Success [Day 37]

11/2/16: AOS Cases, RFIE Response Recv'd case status update, 10/28 delivered via FedEx) [Day 43]

12/14/16: EAD Cases, Filed SR w/ Tier 2, approaching regulatory timeframe [Day 85 / 76 w/ 9day RFIE delay]

12/21/16: EAD Cases, Filed 2nd SR w/ Tier 2, 1st SR hadn't even been looked at [Day 92]

12/23/16: AOS Case Status Updates - Interview Scheduled, text recv'd [Day 94] :dancing:

1/5/17: AOS Interview Appt Hardcopies recv'd, notice date 12/21/16 (Based on notice date, I believe 2nd SR prompted action on AOS cases) [Day 107]

1/9/17: EAD Cases Status Updates - New Card in Production, email recv'd [Day 111 / 102 w/ 9day RFIE delay]

1/12/17: EAD Cases Status Updates - Card Was Mailed, no email/txt [Day 114 / 105 w/ 9day RFIE delay]

1/14/17: AP Cases - Approval notice hardcopies recv'd, no email/txt/online update [Day 116 / 107 w/ 9day RFIE delay]

1/17/17: EAD/AP Combo Card recv'd via USPS Priority Mail [Day 119 / 110 w/ 9day RFIE delay]

1/27/17: AOS Interview :star: - APPROVED!! :dance:  [Day 129 / 120 w/ 9day RFIE delay ~ 4 mos.]

1/27/17: AOS Case status update - Approved | 1/31/17: New Card in Production | 2/1/17: Card Was Mailed

2/4/17: Green Cards Arrived :dancing:

ROC Process (Window opens up Oct 2018)

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Just now, MariaR323 said:

If the aggregate value of all foreign financial accounts exceeded $10,000 at any time during the calendar year then you have an FBAR filing requirement. If not, nothing to report :)

Thank you so much! Do you happen to know if if I need to send the IRS a letter stating that we want my husband to be treated as a resident for tax purposes even though I already filed with the IRS through turbo tax? 


04/14/16-Case Received

04/18/16-NOA1

04/21/16-NOA1 Hard Copy

06/30/16-NOA2 (73 days)

07/05/16-NOA2 Hard Copy

07/25/16-NVC Case Number Assigned.

07/26/16-Case was in Transit.

07/28/16-Case is now 'Ready' in Amsterdam

08/03/16-Received packet 3

09/27/16-Interview - APPROVED!!

09/29/16- Visa received.

10/29/16- POE date.

12/03/16-Receiving Social Security Number

12/01/16-Married

 

01/09/17-Filed AP, AOS and EAD

01/22/17-Received NOA1 

02/06/17-Biometrics Appointment Letter Received 

02/10/17- Digital RFIE received 

02/16/17-Biometrics appointment

02/21/17-RFIE Response Sent

02/23/17-RFIE Response received by USCIS

02/24/17-Status was updated on the USCIS website to "Response received" 

03/09/17-Status changed to "Ready to Schedule Interview"

04/14/17-Filed a service request for EAD card

04/19/17- EAD card is being produced

04/25/17-EAD/AP card was sent out.

04/27/17-Received combo card. 

09/25/17-AOS Interview-APPROVED!

09/30/17-Green card in hand! Done for 2 years :D

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17 minutes ago, Delirium said:

Thank you so much! Do you happen to know if if I need to send the IRS a letter stating that we want my husband to be treated as a resident for tax purposes even though I already filed with the IRS through turbo tax? 

 

Oooh yes, you should have attached that statement to the tax return and actually mailed it in instead of e-Filing :/

 

At this point, maybe the best option is to simply wait for communication from IRS.


Maria ~ U.S. Citizen Petitioner

 

11/28/15: Engaged (L)

K-1 & K-2 Process (Completed in 4 mos. 8 days)

 

1/19/16: I-129F Package recv'd by USCIS via FedEx overnight

1/21/16: NOA1 notice date, routed to CSC (1/28 recv'd hardcopy)

3/18/16: RFE Notification (3/23 recv'd hardcopy)

3/28/16: RFE Response Recv'd notification (3/26 delivered via USPS priority)

4/1/16: NOA2 Approval :dancing: (4/6 recv'd hardcopy)

4/25-4/26/16: NVC received case & assigned no. (5/2 recv'd hardcopy dated 4/29)

4/28/16: Left NVC, "In Transit" to consulate

5/2/16: Consulate Receives via DHL

5/9/16: Fiancée travels to CDJ to clear Case # issue & recv'd hardcopy appt letter

5/13/16: Medical & Biometrics Appt.

5/17/16: Interview Appt. - APPROVED :dance:

5/19/16: CEAC Status changed from "Ready" to "Issued"

5/23/16: Recv'd DHL tracking info via email

5/25/16 @10am: Package ready for pickup at DHL office; @3pm: Fiancée picks up packages - Visas in hand! :thumbs: 

8/5/16: Wedding (L)

AOS/EAD/AP Process, K-1 & K-2 (Completed in 4 mos. 15 days)

 

9/21/16: Package recv'd by USCIS via FedEx overnight [Day 1]

9/29/16: NOA1 notice date, text/email recv'd, routed to NBC, 10/4 case status avail [Day 9]

10/6/16: NOA1 Hardcopies recv'd [Day 16]

10/15/16: Biometrics Notice recv'd, NOA date 10/7, postmark 10/12 [Day 25]

10/19/16: AOS Cases (I-864) RFIE Notification, text recv'd, 10/24 recv'd hardcopy [Day 29]

10/27/16: Biometrics (Scheduled) Appt for AOS/EAD - Success [Day 37]

11/2/16: AOS Cases, RFIE Response Recv'd case status update, 10/28 delivered via FedEx) [Day 43]

12/14/16: EAD Cases, Filed SR w/ Tier 2, approaching regulatory timeframe [Day 85 / 76 w/ 9day RFIE delay]

12/21/16: EAD Cases, Filed 2nd SR w/ Tier 2, 1st SR hadn't even been looked at [Day 92]

12/23/16: AOS Case Status Updates - Interview Scheduled, text recv'd [Day 94] :dancing:

1/5/17: AOS Interview Appt Hardcopies recv'd, notice date 12/21/16 (Based on notice date, I believe 2nd SR prompted action on AOS cases) [Day 107]

1/9/17: EAD Cases Status Updates - New Card in Production, email recv'd [Day 111 / 102 w/ 9day RFIE delay]

1/12/17: EAD Cases Status Updates - Card Was Mailed, no email/txt [Day 114 / 105 w/ 9day RFIE delay]

1/14/17: AP Cases - Approval notice hardcopies recv'd, no email/txt/online update [Day 116 / 107 w/ 9day RFIE delay]

1/17/17: EAD/AP Combo Card recv'd via USPS Priority Mail [Day 119 / 110 w/ 9day RFIE delay]

1/27/17: AOS Interview :star: - APPROVED!! :dance:  [Day 129 / 120 w/ 9day RFIE delay ~ 4 mos.]

1/27/17: AOS Case status update - Approved | 1/31/17: New Card in Production | 2/1/17: Card Was Mailed

2/4/17: Green Cards Arrived :dancing:

ROC Process (Window opens up Oct 2018)

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23 minutes ago, MariaR323 said:

 

Oooh yes, you should have attached that statement to the tax return and actually mailed it in instead of e-Filing :/

 

At this point, maybe the best option is to simply wait for communication from IRS.

Thank you! I'll do that. I didn't realise that I needed to do that until looking into stuff haha. I do it through turbo tax every year and didn't know it would be any different :/


04/14/16-Case Received

04/18/16-NOA1

04/21/16-NOA1 Hard Copy

06/30/16-NOA2 (73 days)

07/05/16-NOA2 Hard Copy

07/25/16-NVC Case Number Assigned.

07/26/16-Case was in Transit.

07/28/16-Case is now 'Ready' in Amsterdam

08/03/16-Received packet 3

09/27/16-Interview - APPROVED!!

09/29/16- Visa received.

10/29/16- POE date.

12/03/16-Receiving Social Security Number

12/01/16-Married

 

01/09/17-Filed AP, AOS and EAD

01/22/17-Received NOA1 

02/06/17-Biometrics Appointment Letter Received 

02/10/17- Digital RFIE received 

02/16/17-Biometrics appointment

02/21/17-RFIE Response Sent

02/23/17-RFIE Response received by USCIS

02/24/17-Status was updated on the USCIS website to "Response received" 

03/09/17-Status changed to "Ready to Schedule Interview"

04/14/17-Filed a service request for EAD card

04/19/17- EAD card is being produced

04/25/17-EAD/AP card was sent out.

04/27/17-Received combo card. 

09/25/17-AOS Interview-APPROVED!

09/30/17-Green card in hand! Done for 2 years :D

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On 1/26/2017 at 7:37 PM, MariaR323 said:

 

Oooh yes, you should have attached that statement to the tax return and actually mailed it in instead of e-Filing :/

 

At this point, maybe the best option is to simply wait for communication from IRS.

 

On 1/26/2017 at 8:01 PM, Delirium said:

Thank you! I'll do that. I didn't realise that I needed to do that until looking into stuff haha. I do it through turbo tax every year and didn't know it would be any different :/

 

There won't be much communication from the IRS. They are actually waiting for you to submit an Amended return.

 

https://www.irs.gov/individuals/international-taxpayers/nonresident-spouse-treated-as-a-resident

 

Quote

How to Make the Choice

Attach a statement, signed by both spouses, to your joint return for the first tax year for which the choice applies. It should contain the following information:

  1. A declaration that one spouse was a nonresident alien and the other spouse a U.S. citizen or resident alien on the last day of your tax year, and that you choose to be treated as U.S. residents for the entire tax year
  2. The name, address, and identification number of each spouse. (If one spouse died, include the name and address of the person making the choice for the deceased spouse.)

Amended Return

You generally make this choice when you file your joint return. However, you can also make the choice by filing a joint amended return on Form 1040X, Amended U.S. Individual Income Tax Return within 3 years from the date you filed your original U.S. income tax return or 2 years from the date you paid your income tax for that year, whichever is later. If you make the choice with an amended return, you and your spouse must also amend any returns that you may have filed after the year for which you made the choice.

 


Click Below to View my timeline (spoiler added to reduce visible space consumption)

 

Timeline to date:

11/11/14 - Met online through eHarmony
11/12/14 - Started communication through email (1-2 emails daily)
12/20/14 - Communicating through Phone Calls and Video Calls
07/04/15 - First Trip to China to visit her (spent time at her home, her hometown, and Beijing), Met the whole family.
07/18/15 - Sadly I had to return back to the US
10/01/15 - I am returning back to China to be with her again
10/11/15 - She will accompany me back on the same flight for 30 days
11/14/15 - She returns back to China
12/01/15 - I-129F Fed-Ex'd to the Lewisville address
12/03/15 - Packet signed for by the receiver
12/07/15 - NOA1 Generated
12/11/15 - NOA1 Received
01/14/15 - NOA2 Generated (Approved)
01/28/16 - NVC Received (Still waiting papers for official date)
01/29/16 - NVC Case# Assigned (Still waiting papers for official date)
02/03/16 - Case Sent to Embassy
02/04/16 - Case Received by Embassy
03/03/16 - Packet 3 Received
03/03/16 - Packet 3 Sent back to Embassy
03/04/16 - DS-160 Fee paid
03/09/16 - Packet 4 Received (Documents were prepared in advance)
04/02/16 - I return to China to provide moral and emotional support as she goes to her Interview on the 5th
04/05/16 - Interview Date (APPROVED!!!)

04/25/16 - POE Dallas Texas (DFW) smooth sailing through customs

04/25/16 - Arrived in Nashville, TN 10pm
04/29/16 - Marriage Certificate received
SSN filed somewhere after this point (exact date is not remembered, received after a 30 minute wait)
11/16/16 - AoS packet mailed (i-485, i-765, i-131)
11/18/16 - AoS packet received
12/06/16 - Check Cashed
02/28/17 - EAD and AP Approved
03/02/17 - NOA2 for EAD and AP Arrived
03/02/17 - EAD/AP Card Arrived

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